Trial By Ambush Not Allowed

Personal Injury

In the case of Gurin Gold, LLC, et. al v. Charles Dixon, Case number 4D18-2156 (Fla. 4th DCA 2019), Florida’s Fourth DCA excluded the opinion of a doctor who reviewed MRI’s during trial for the first time and formed new opinions, long after the expiration of expert discovery deadlines.

Conduct At Issue In The Case

The plaintiff in this case had MRI’s done in both 2010 and 2014 after a car accident. At the time that the plaintiff’s expert gave a deposition, he had only reviewed the 2014 MRI which was related to the accident sued upon in the case. He did not review the 2010 MRI until midway through the trial.

After reviewing the 2010 MRI, the plaintiff’s expert testified that a herniation depicted in both MRI scans had gotten worse after the accident.

The trial judge initially excluded testimony from the plaintiff’s expert but later reconsidered stating that the expert’s recent review of the previously unreviewed MRI was only a “weight [of the evidence] issue.”

The Fourth DCA reversed the trial judge and stated “[o]nce trial has commenced, it is no longer the time for gathering evidence or presenting new evidence to a party’s own physician witness in order to get additional testimony.” Further, after opening statement, “extraordinary circumstances” are required for the development of new testimony.

Trial By Ambush Is A Slippery Slope

It should go without saying but it still happens far too often. Trial by ambush is unfair and prejudicial because the body of evidence is supposed to be closed with enough time for the parties to prepare their cases for trial. If the body of evidence is still subject to change during a trial, then the pre-trial deadlines and cutoffs mean nothing and trial becomes the wild, wild west.

Many people seem to think that a good lawyer is someone who does a good job of twisting the truth in favor of their client and is also someone who resorts to any means justified by the end result to do so. That is not what good lawyers do.

The lawyer on your case is supposed to 1) discover what the body of evidence in the case is going to be, 2) determine what evidence is going to be admissible, and 3) present appropriate arguments based on the evidence that actually is allowed.

Get Help With Your Florida Personal Injury Case

While a trial itself is not all that complicated, it is very difficult to conduct a trial on your own and without experience. To have a fighting chance at success, you will need the help of a Florida personal injury lawyer at your side. The success or failure of your personal injury lawsuit not only depends on the truth of the matter but also how you present your case. Call today to talk about your personal injury case to a lawyer in Lakeland, Florida.

A consultation with Russo Law is free. Cases are accepted on a contingency fee basis, which means that there are no attorney fees or costs unless money is recovered for you.

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July 12, 2019